73rd OREGON LEGISLATIVE ASSEMBLY--2005 Regular Session
NOTE: Matter within { + braces and plus signs + } in an
amended section is new. Matter within { - braces and minus
signs - } is existing law to be omitted. New sections are within
{ + braces and plus signs + } .
LC 1879
House Bill 2726
Sponsored by Representatives GARRARD, GREENLICK; Representatives
ACKERMAN, BROWN, GILMAN, KRIEGER, MARCH, RICHARDSON, ROSENBAUM,
SCHAUFLER, P SMITH
SUMMARY
The following summary is not prepared by the sponsors of the
measure and is not a part of the body thereof subject to
consideration by the Legislative Assembly. It is an editor's
brief statement of the essential features of the measure as
introduced.
Requires Department of Transportation to give notice at least
10 days prior to suspending, revoking or canceling driving
privileges or commercial driver license. Provides for exceptions.
Requires notice be accomplished by certified mail, restricted
delivery, return receipt requested.
A BILL FOR AN ACT
Relating to notice; creating new provisions; and amending ORS
809.290, 809.430, 809.440 and 809.610.
Be It Enacted by the People of the State of Oregon:
SECTION 1. ORS 809.430 is amended to read:
809.430. (1) When the Department of Transportation, as
authorized or required, suspends, revokes or cancels driving
privileges, a commercial driver license or the right to apply for
driving privileges or a commercial driver license, it shall give
notice under this section of such action to the person whose
driving privileges, commercial driver license or right to apply
is affected.
(2) Notice under this section shall state the nature and reason
for the action and, in the case of a suspension, whether it was
ordered by a court.
{ + (3) Notice under this section shall be given at least 10
days prior to the department taking the action or as required by
the statute authorizing the action, whichever is longer. This
subsection does not apply when:
(a) The court takes immediate possession of a license or permit
under ORS 809.250.
(b) A police officer takes immediate custody of a driver
license or permit under ORS 813.100.
(c) Driving privileges are suspended under ORS 813.410.
(d) The suspension of driving privileges is reinstated under
ORS 813.440. + }
{ - (3) - } { + (4) + } { - If violation of a suspension
or revocation would constitute the offense described in ORS
811.182, - } Service of notice { - of the suspension or
revocation - } under this section is accomplished by:
(a) Mailing the notice by certified mail, restricted delivery,
return receipt requested, to the person's address as shown by
driver licensing records of the department; or
(b) Personal service in the same manner as a summons is served
in an action at law.
{ - (4) Service of notice under this section for all other
actions is accomplished by: - }
{ - (a) Mailing the notice by first class mail to the
person's address as shown by driver licensing records of the
department; or - }
{ - (b) Personal service in the same manner as a summons is
served in an action at law. - }
SECTION 2. ORS 809.440 is amended to read:
809.440. This section establishes hearing and administrative
review procedures to be followed when the Department of
Transportation is required to provide a hearing or an
administrative review of an action.
(1) When other procedures described under this section are not
applicable to a suspension or revocation under ORS 809.409 to
809.423, the procedures described in this subsection shall be
applicable. All of the following apply to this subsection:
(a) The hearing shall be given before the department imposes
the suspension or revocation of driving privileges or continues,
modifies or extends a suspension or revocation.
(b) Before the hearing, the department shall notify the person
in the manner described in ORS 809.430.
(c) The hearing shall be in the county where the person resides
unless the person and the department agree otherwise.
(d) Upon such hearing, the department, good cause appearing
therefor, may impose, continue, modify or extend the suspension
or revocation of the driving privileges.
(e) The hearing shall be conducted by an administrative law
judge assigned from the Office of Administrative Hearings
established under ORS 183.605.
(2) The following apply when administrative review is provided
under any statute or rule of the department:
{ + (a) The department shall provide notice in the manner
described in ORS 809.430 before the suspension or revocation may
take effect. + }
{ - (a) - } { + (b) + } An administrative review shall
consist of an informal administrative process to assure prompt
and careful review by the department of the documents upon which
an action is based.
{ - (b) - } { + (c) + } It shall be a defense to the
department's action if a petitioner can establish that:
(A) A conviction on which the department's action is based was
for an offense that did not involve a motor vehicle and the
department's action is permitted only if the offense involves a
motor vehicle.
(B) An out-of-state conviction on which the department's action
is based was for an offense that is not comparable to an offense
under Oregon law.
(C) The records relied on by the department identify the wrong
person.
{ - (c) - } { + (d) + } A person requesting administrative
review has the burden of showing by a preponderance of the
evidence that the person is not subject to the action.
{ - (d) - } { + (e) + } Actions subject to administrative
review shall be exempt from the provisions of ORS chapter 183
applicable to contested cases, and from the provisions of
subsection (4) of this section applicable to post-imposition
hearings. A suspension, revocation or cancellation shall not be
stayed during the administrative review process or by the filing
of a petition for judicial review. A court having jurisdiction
may order the suspension, revocation or cancellation stayed
pending judicial review.
{ - (e) - } { + (f) + } Judicial review of a department
order affirming a suspension or revocation after an
administrative review shall be available as for review of orders
other than contested cases, and the department may not be subject
to default for failure to appear in such proceedings. The
department shall certify its record to the court within 20 days
after service upon the department of the petition for judicial
review.
{ - (f) - } { + (g) + } If the suspension or revocation is
upheld on review by a court, the suspension or revocation shall
be imposed for the length of time appropriate under the
appropriate statute except that the time shall be reduced by any
time prior to the determination by the court that the suspension
or revocation was in effect and was not stayed.
{ - (g) - } { + (h) + } The department shall adopt any
rules governing administrative review that are considered
necessary or convenient by the department.
(3) When permitted under this section or under any other
statute, a hearing may be expedited under procedures adopted by
the department by rule. The procedures may include a limited time
in which the person may request a hearing, requirements for
telephone hearings, expedited procedures for issuing orders and
expedited notice procedures.
(4) When permitted under ORS 809.409 to 809.423, a hearing may
be a post-imposition hearing under this subsection. A
post-imposition hearing is a hearing that occurs after the
department imposes the suspension or revocation of driving
privileges or continues, modifies or extends a suspension or
revocation. All of the following apply to this subsection:
(a) The department must provide notice in the manner described
in ORS 809.430 before the suspension or revocation may take
effect.
(b) Except as provided in this subsection, the hearing shall be
conducted as a contested case in accordance with ORS chapter 183.
(c) Unless there is an agreement between the person and the
department that the hearing be conducted elsewhere, the hearing
shall be held either in the county where the person resides or at
any place within 100 miles, as established by the department by
rule.
(5) The department has complied with a requirement for a
hearing or administrative review if the department has provided
an opportunity for hearing or review and the person with the
right to the hearing or review has not requested it. Any request
for hearing or review must be made in writing.
(6) For any hearing described under this section, and for
administrative review described under this section, no further
notice need be given by the department if the suspension or
revocation is based upon a conviction and the court gives notice,
in a form established by the department, of the rights to a
hearing or review and of the suspension or revocation.
SECTION 3. ORS 809.290 is amended to read:
809.290. This section establishes circumstances that will make
a person subject to suspension under ORS 809.415 (4) and what a
person is required to do to make the person no longer subject to
suspension. The following apply as described:
(1) A person is subject to suspension under ORS 809.415 (4) if
the Department of Transportation receives notice from a court to
apply this section under ORS 809.220. A person who is subject
under this subsection remains subject until the person presents
the department with notice issued by the court showing that the
person is no longer subject to this section or until five years
have elapsed, whichever is earlier. This subsection shall not
subject a person to ORS 809.415 (4) for any pedestrian offense,
bicycling offense or parking offense. Upon receipt of notice from
a court, the department shall send a letter by { - first class
mail - } { + certified mail, restricted delivery, return receipt
requested, + } advising the person that the suspension will
commence 60 days from the date of the letter unless the person
presents the department with the notice required by this
subsection.
(2) A person is subject to suspension under ORS 809.415 (4) if
the department receives notice from a court under ORS 809.210
that a person has failed to pay a fine or obey an order of the
court. A person who is subject under this subsection remains
subject until the person presents the department with notice
issued by the court showing that the person has paid the fine or
obeyed the order of the court or until five years have elapsed,
whichever is earlier. This subsection shall not subject a person
to ORS 809.415 (4) for failure to pay a fine relating to any
pedestrian offense, bicycling offense or parking offense. Upon
receipt of notice from a court, the department shall send a
letter by { - first class mail - } { + certified mail,
restricted delivery, return receipt requested, + } advising the
person that the suspension will commence 60 days from the date of
the letter unless the person presents the department with the
notice required by this subsection.
(3) A person is subject to suspension under ORS 809.415 (4) if
the person pays the department any fee or tax with a bank check
and the check is returned to the department as uncollectible or
the person tenders payment with a credit or debit card and the
issuer of the card does not pay the department. A person who is
subject under this subsection remains subject until the
department receives the money for the fee or tax and any fee
charged by the department under ORS 802.170 or until five years
have elapsed, whichever is earlier.
SECTION 4. ORS 809.610 is amended to read:
809.610. (1) When the Department of Transportation receives an
abstract of the conviction under ORS 810.375, and the conviction
is the second one of those described by ORS 809.600 (1) for the
person or the 19th of those described by ORS 809.600 (2) for the
person, the department may restrict the person's driving
privileges and shall send the person notice of the restrictions
by
{ - first class mail - } { + certified mail, restricted
delivery, return receipt requested + }.
(2) A person notified under subsection (1) of this section of
restrictions placed on the person's driving privileges may
request a meeting with a representative of the department to
determine whether the restrictions may be lifted.
SECTION 5. { + The amendments to ORS 809.290, 809.430, 809.440
and 809.610 by sections 1 to 4 of this 2005 Act apply only to
notices given on or after the effective date of this 2005
Act. + }
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